Sex Selection & Abortion: Australia

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Executive Summary

Sex selection is generally prohibited across Australia, with three states specifically legislating on this issue.  Abortion is permitted in Australia, originally based upon the development of case law, and more recently through primary legislation. 

Sex Selection

Australia is a federation with a written constitution.  The Commonwealth of Australia consists of six states and two territories.  Laws may be passed by either the federal Parliament or the Parliament or Legislative Assembly of the various states or territories.  

There is a ban on sex selection throughout Australia.  This ban came into force in 2004, when the National Health and Medical Research essentially outlawed it on moral and ethical grounds.  The National Health and Medical Research Council (NHMRC) was established under the National Health and Medical Research Council Act 1992.[1] 

The Guidelines, as established by the Council, prohibiting sex selection in Australia state: 

Sex selection is an ethically controversial issue.  The Australian Health Ethics Committee believes that admission to life should not be conditional upon a child being a particular sex.  Therefore, pending further community discussion, sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition.[2] 

These guidelines are not in themselves legally binding, however, as this particular section involves the formation and use of human embryo’s through the use of artificial reproductive technology.  Bodies offering these services must be accredited by an accreditation body, such as the Fertility Society of Australia, which requires compliance with the NHMRC ART guidelines as part of its accreditation process.[3]
The States of Victoria, Western Australia and South Australia have specifically legislated on the issue of sex selection. 

Victoria prohibits sex selection during assisted reproduction, unless it is necessary to prevent a genetic abnormality or disease, or a Patient Review Panel has otherwise approved the use of sex selection.[4] 

In Western Australia, the Reproductive Technology Council approved the use of pre-implantation genetic diagnosis in 2004 but prohibits the use of technology to select the sex of embryo’s unless it is to prevent a gender based disorder.[5]  

South Australia bans the use of sex selection using reproductive technology unless it is to prevent the transmission of a genetic defect.[6] 

Abortion

Abortion law in Australia has been left to the jurisdiction of the individual states, and in many states has evolved through the common law to allow abortions based upon the medical need of the patient.[7]  Recent Federal law has reformed the handling of the miscarriage inducing drugs RU 486.  The Federal Health Minister no longer has the power to veto any application to allow RU486 to be used in Australia.  Approval for the use of the drug has been given to the Therapeutic Goods Administration, a pharmaceutical body. 

Australian Capital Territory

The Australian Capital Area became the first jurisdiction in Australia to legalize abortion through the Crimes (Abolition of Offence of Abortion) Act 2002.  This law provides that any rule of common law that creates an offence in relation to procuring a woman’s miscarriage is abrogated.[8]  The passage of this law removed abortion from the criminal statute books altogether. 

Victoria

The law on abortion in Victoria has been reformed by the Abortion Law Reform Act 2008.  This Act allows a registered medical practitioner to perform an abortion on a woman who is not more than 24 weeks pregnant.[9]  Termination of a pregnancy after 24 weeks can only take place if the medical practitioner;

  1. reasonably believes that the abortion is appropriate in all the circumstances; and, 
  2. has consulted at least one other registered medical practitioner who also reasonably believes that the abortion is appropriate in all the circumstances. 

(2) In considering whether the abortion is appropriate in all the circumstances, a registered medical practitioner must have regard to;

  1. all relevant medical circumstances; and, 
  2. the woman’s current and future physical, psychological and social circumstances.[10] 

Western Australia

A Private Members’ bill passed in 1998 known as the Davenport legislation, repealed many of the original Australian criminal code provisions regarding abortion (Sections 199-201.)  The legislation of the State of Western Australia now permits abortions up to 20 weeks of pregnancy if one of four grounds are satisfied: 

  • The first ground essentially allows abortion “on request,” provided a second, independent medical practitioner has counseled the pregnant woman about any medical risks associated with abortion, and has offered to refer her for counseling about other matters associated with the abortion.  Some additional restrictions are imposed where the pregnant patient is aged under 16.  
  • The other three grounds permit abortion where;  
  • the pregnant woman will suffer serious personal, family or social consequences if the abortion is not performed;  
  • serious danger to the pregnant woman’s physical or mental health will result if the abortion is not performed; or,  
  • the pregnant woman’s pregnancy is causing serious danger to her mental health. 

After a period of 20 weeks, in order for an abortion to be obtained legally, two objective medical practitioners must agree that the pregnant women or the fetus has a severe medical condition which would justify an abortion.

For more information on Australia see:

Prepared by Clare Feikert , Senior Foreign Law Specialist

June 2009

  1. National Health and Medical Research Council Act 1992, No. 225/1990.  [Back to Text]
  2. Australian Government, National Health and Medical Research Council, Ethical guidelines on the use of assisted reproductive technology [ART] in clinical practice and research, 2007,  ¶ 11.1, http://www.nhmrc.gov.au/publications/synopses/_files/e78.pdf (external link). [Back to Text]
  3. Australian Government, National Health and Medical Research Council, Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, 2007, http://www.nhmrc.gov.au/publications/synopses/_files/e78.pdf (external link). [Back to Text]
  4. Assisted Reproductive Treatment Act 2008, No. 76 of 2008, § 28 (Victoria).  [Back to Text]
  5. Reproductive Technology Council, Approval for Diagnostic Testing of Embryos (2004) (WA). [Back to Text]
  6. Reproductive Technology (Clinical Practices) Act 1988, § 13, (SA). [Back to Text]
  7. E.g. R v Wald (1971) 3 DCR (NSW) 25; and R v Davidson [1969] VR 66 (Vict).  [Back to Text]
  8. Crimes (Abolition of Offence of Abortion) Act 2002 s. 44(1). [Back to Text]
  9. Abortion Law Reform Act 2008 (Vict.), part 2. § 4. [Back to Text]
  10. Id. § 5, (1) - (2). [Back to Text]

Last Updated: 08/08/2012